Canadian HR Reporter

www.hrreporter.com 9 "It wasn't clear whether it meant following a termination or a statutory notice period or contractual notice period." André Poulin-Denis, Gowling would have been 'full-time' or 'actively employed' throughout the reasonable notice period." Essentially, the terms "full-time" or "active" weren't sufficiently clear, says Poulin-Denis. "It wasn't clear whether it meant following a termination or following a statutory notice period or contractual notice period — there was ambiguity there," he says. "There has to be clear and unequi- vocal contractual language if we're to determine whether or not an employee is entitled to non-discre tionar y benefits… It's important to ensure that those exclusions and those limits are very, very precisely and clearly laid out in the language in either the employment agreement or the plan language, whether it's a bonus plan or long-term incentive plan." The Supreme Court didn't believe that the language used was sufficiently clear to remove or limit the employee's employee is entitled to non-discretionary benefits or entitlement following a wrongful termination, says André Poulin-Denis, an associate at Gowling in Ottawa. "The decision does not create an automatic entitlement to a bonus or other non-discretionary variable compensation post-deployment. We really need to run through the steps of determining, first, what the entitlements are for damages upon wrongful termination and then, secondly, have the parties agree to contractually limit or exclude any of those entitlements." Clarity of language The provisions of the agreement must be absolutely clear and unambiguous, said the Supreme Court. "So, language requiring an employee to be 'full-time' or 'active'... will not suffice to remove an employee's common law right to damages. After all, had Mr. Matthews been given proper notice, he common law entitlement, says Spindler. "This is a bit of a nuanced distinction," she says. "They basically said, 'This is a common law entitlement rather than a contractual entitlement'… meaning that there is an implied term in the employment relationship to provide common law reasonable notice to employees upon the termination of their employment, or pay in lieu, which is generally damages for that." It's a frustrating decision for employers, says Mapplebeck. "What would have been nice is for the Supreme Court to say, 'This is the kind of language that we would have enforced.' But they didn't do that; they basically just said, 'It needs to be very clear that you're contracting out of the common law in that regard.' I don't know what that means. I don't know what a clause looks like that would do that," he says. "We need to get a case that makes it to an appellate-level court that addresses a bonus plan that's actually drafted in a way that does allow the employer to basically terminate an employee without having to pay the bonus over the next notice period or whatever." Subscribe to the leading publication for Canada's HR professionals MONTHLY PUBLICATION Delivered right to your doorstep or office every month REAL-TIME WEB SERVICE Breaking news, features, white papers, podcasts, special reports and more REGULAR E-NEWSLETTER News service delivered straight to your inbox twice a week SCAN TO LEARN MORE CHRR Product ad.indd 2 CHRR Product ad.indd 2 07/11/2020 2:03:29 pm 07/11/2020 2:03:29 pm

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